tenure to a private owner of land, bound to repair some particular highway in right of his estate (d). Where an individual is bound to repair by his ownership of the soil, he often claims (by grant or prescription), from those who use the road, a toll of that species which is called a toll traverse (e). The case of bridges is differently provided for. The expense of maintaining these is defrayed indeed (like that of roads) by the public; this having been part of the trinoda necessitas, to which every man's estate was by the antient law subject, viz., expeditio contra hostem, arcium constructio, et pontium reparatio (f);-but it is incumbent, not on the parishes, but, as the general rule, on the counties at large in which the bridges are situate (g). And where a parish is bound by prescription, (as is sometimes the case,) to repair a bridge, there is a statutory provision, which gives effect to any contract between the county and the parish for performing the repairs in future at the expense of the former, and relieving the latter from the charge (h). The liability of the county extended at common law, not only to the bridge itself, but to so much of the road as passed over it, and even to so much as formed its ends or approaches, and, indeed, by stat. 22 Hen. VIII. c. 5, the county was made liable (d) 3 Geo. 4, c. 126, s. 107; 5 & 6 Will. 4, c. 50, s. 62. See R. v. Eastrington, 5 A. & E. 765; R. v. Heage, 2 Q. B. 128. See The Queen v. Ramsden, 1 Ell. Bl. & Ell. 949. (e) Com. Dig. Toll; Willes, 115; Brett v. Beales, 10 B. & C. 508; Lord Middleton v. Lambert, 1 A. & E. 401. As to the distinction between a toll traverse and a toll thorough, see R. v. Marquis of Salisbury, 8 A. & E. 716. (f) 1 Bl. Com. 357. An individual may be liable to repair a bridge ratione tenura; see Baker VOL. III. v. Greenhill, 3 Q. B. 148; Queen v. Bedfordshire (Inhabitants), 4 Ell. & Bl. 535. (g) Viner's Abridg. Bridges (A). See Re Newport Bridge, 2 Ell. & Ell. 377. As to borrowing money on credit of the county rate, for repair of the bridges therein, see 4 & 5 Vict. c. 49. As to the manner of providing for the repair of bridges, in cases where a borough and not the county is liable, see 13 & 14 Vict. c. 64. (h) 22 Hen. 8, c. 5. (See R. v. Hendon, 4 B. & Ad. 628.) K to repair three hundred feet either way from the bridge. And such is still the state of the law as to all bridges built prior to the passing of the Highway Act (5 & 6 Will. IV. c. 50,) in the year 1835. But by that statute it is provided, that, in the case of all bridges thereafter to be built, the repair of the road itself passing over or adjoining to the bridge shall be done by the parish, or other parties bound to the general repair of the highway of which it forms a portion;-the county being still subject, however, to its former obligation, as regards "the "walls, banks, or fences of the raised causeways, and "raised approaches to any bridge, or the land arches "thereof" (i). The same statute contains provisions, designed to protect parishes from being subjected to unreasonable charges, in respect of ways dedicated to the public. It enacts, that no road made at the expense of any individual, or body corporate, shall be deemed a highway which the parish is liable to repair, unless three calendar months' notice shall be given to the parish surveyor, of an intention to dedicate such road to the public (k). Upon notice being so given, a vestry is to be called to consider whether the road is of sufficient utility to justify its being kept in repair by the parish; and in the event of the vestry thinking the road unnecessary, the justices, at the next special sessions for the highways, are finally to determine the matter (7). Other provisions are added, the object of which is to ensure that the road shall be originally constructed in a proper and substantial manner, before the expense of repairing it is cast upon the parish (m). (i) 5 & 6 Will. 4, c. 50, s. 21. (k) Sect. 23. As to the liability of the parish before this statute, see R. v. Leake, 5 B. & Ad. 469. (7) As to the discontinuance of the repair of unnecessary highways in places which have adopted the Highway Acts of 1862, 1864 (vide post, p. 132), see 27 & 28 Vict. c. 101, s. 21. (m) 5 & 6 Will. 4, c. 50, s. 23. See The Queen v. Thomas, 7 Ell, & Bl. 399. Any parish, county, or other party bound to repair a road or bridge, and neglecting the duty, is liable at common law to an indictment (n). Though each parish (or township or other particular district or person) through whose lands any portion of a highway passes, is liable to maintain such portion by the general law of the land,-there are also other means to provide funds for repairing the most frequented and important roads. For these are kept in order, (and many of them were originally constructed,) under the authority of local acts of parliament, called Turnpike Acts: by which the management of such roads is usually vested, for a certain term of years, in trustees or commissioners; who are empowered by these Acts to erect toll-gates, and to levy tolls from those who pass through, as a fund for defraying the expenses of repairs or improvements. There is thus a distinction between highways in general and turnpike roads. It is to be understood, however, with respect to the latter, that the collection of toll does not supersede the other means provided by law for maintaining highways. If a turnpike road or bridge is allowed by the trustees to fall out of repair, the parishes or other parties who would have been bound to make it good (supposing it not to have become the subject of a turnpike trust) are still, in general, liable to that obligation (o). But they may be exempt from it under particular circumstances; for the trustees of a turnpike road may, in certain cases, enter into a contract with such parties, and undertake to (n) As to the costs of such indictment, see Reg. v. Inhabitants of Heanor, 6 Q. B. 745; The Queen v. Eyton, 3 Ell. & Bl. 390: and as to its removal by certiorari to the Queen's Bench, see R. v. Inhabitants of Sandon, 3 Ell. & Bl. 390. (0) See 3 Geo. 4, c. 126, s. 110; 7 & 8 Geo. 4, c. 24, s. 17; R. v. Netherthong, 2 B. & A. 179; Bussey r. Storey, 4 B. & Adol. 109. It may be observed, that on any turnpike road becoming an ordinary highway (the trust having determined) the trustees or commissioners are required, by 30 & 31 Vict. c. 121, s. 3, to pay over any balance of monies in their hands rateably among the parishes who are bound to repair the road. repair exclusively out of the trust funds: and where any contract of this description is in force, the persons originally liable are discharged from all responsibility (p). The turnpike trusts which have been thus established are very numerous; but there is one, which, from its importance. deserves a specific notice. It is that of the "turnpike roads of the metropolis north of the Thames;" the different trusts of which were consolidated into one by 7 Geo. IV. c. cxlii, a statute which has been amended by 10 Geo. IV. c. 59, and 26 & 27 Vict. c. 78 (q). With respect to those highways, or parts of highways, which pass through and form the streets of towns, we may observe that they are generally the subject of distinct provision, under special local statutes, usually called Paving Acts (r). In 10 & 11 Vict. c. 34, a consolidation will be found of the provisions ordinarily introduced into Acts of this description. Having thus taken some view of the general state of the law on the subject of the present chapter, we propose now to take some notice of certain particular provisions applicable, I. To highways in general. II. To turnpike roads. I. Highways in general.-Some of these are regulated by 5 & 6 Will. IV. c. 50, 4 & 5 Vict. cc. 51, 59, and 8 & 9 Vict. c. 71,-and others under the provisions of more recent Acts, viz., 25 & 26 Vict. c. 61, 26 & 27 Vict. (p) See 3 Geo. 4, c. 126, ss. 106, 107, 108. (q) By this last Act a considerable number of roads, formerly maintainable by the commissioners under these trusts, are converted into parish highways and made no longer subject to turnpikes. (r) As to the Acts for paving, lighting, &c., in boroughs, see 20 & 21 Vict. c. 50, ss. 2-4. As to the enactments in regard to streets and highways passing through districts which have adopted the Local Government Act, 1858, (21 & 22 Vict. c. 98,) see 11 & 12 Vict. c. 63, s. 70; 21 & 22 Vict. c. 98, ss. 3643; 24 & 25 Vict. c. 61, s. 9; 25 & 26 Vict. c. 61, s. 7. And as to the streets of the metropolis, see 57 Geo. 3, c. cxxix; 25 & 26 Vict. c. 61, s. 7; c. 102, s. 73 et seq.; 30 & 31 Vict. cc. 5, 134. c. 61, and 27 & 28 Vict. c. 101. We will first consider the provisions of the former group of statutes (s). The general plan of the 5 & 6 Will. IV. c. 50, and the Acts by which it is amended, is to place highways under the care of surveyors, appointed for the respective parishes, (subject to a superintending power to be exercised, in certain cases, by the justices of the peace at special sessions to be holden for the highways;) and to provide for the expenses of repairing them by a rate on the occupiers of land, made and levied by the surveyor, upon the same principle (generally) as the poor rate (t). Such surveyor is to be elected annually, by the inhabitants in vestry assembled; and he must possess certain qualifications in point of property (u). When elected, he is compellable unless he can show some grounds of exemption (x)-to take upon himself the office; but he is permitted to appoint a deputy, who is subject to the same responsibilities with his principal (y). The office, as the general rule, is not remunerated, but the vestry may appoint a surveyor, if they think proper, with a salary (z). Any two or more parishes may,-by mutual agreement and by consent of the justices in sessions assembled,--be united into one district, for the purposes of the Act, under (8) The 5 & 6 Will. 4, c. 50, applies to all highways not otherwise provided for. But roads, pavements, bridges and turnpike roads falling under local or personal acts of parliament, are not affected by it. As to the highways of South Wales, they are especially regulated by 23 & 24 Vict. c. 68 (repealing 14 & 15 Vict. c. 16); but, in all points not otherwise provided for therein, are within the 5 & 6 Will. 4, c. 50. (And see 25 & 26 Vict. c. 61, s. 7.) (t) 5 & 6 Will. 4, c. 50, ss. 27, 113. (See Reg. v. Randall, 4 Ell. & Bl. 564.) As to the recovery of the costs of distraining for highway rates, and the course of proceeding on such distress, see 12 & 13 Vict. c. 14. (u) 5 & 6 Will. 4, c. 50, s. 6. As to the election and appointment of surveyor, see R. v. Best, 2 N. S. C. 655; Reg. v. Justices of Surrey, 5 D. & L. 40. (a) The same grounds of exemption that apply to an overseer of the poor (vide sup. p. 43, n. (c)) hold also as to a surveyor of the roads. (y) 5 & 6 Will. 4, c. 50, ss. 7, 8. (z) Sect. 9. |